Concussions in the NFL (Ben Utecht vs The Cincinnati Bengals)

Ten years ago in the NFL concussions were not considered a big deal. In fact if you got a concussion, you sat out a few plays until you weren’t dizzy, and then you went right back in the game. Furthermore, if you didn’t go back in, teammates, players, and coaches looked down on you for it.

Flash-forward to the present, concussions are no longer just a booboo you shake off. They are now in the forefront of sports health discussions everywhere. It started with science showing that numerous hits to the head can bring an onset of early dementia. It went further with science showing that concussions (which are termed as bruises to the brain) that are caused by blunt force trauma to the head can lead to dementia as well.

I don’t want to discuss the overall process the NFL and the NFLPA have gone through to help with safety, rather I want to discuss a recent case where a player who had concussion issues, won a case against the team he played for.

Ben Utecht a former tight end of the Cincinnati Bengals was one of their big free agent acquisitions in 2008 season. He was riddled with injuries and had a concussion his first year. In 2009 on the third play of the season Utecht was nailed as he caught a pass and was carted off the field. I happened to be at that game and was sitting a few rows up from where it happened. It was scary moment, he wasn’t moving at all. Utecht did not play the rest of the season and ended up being let go by the team after the season and retired after that.

Utecht filed a grievance with the league for the rest of his “playing time” salary from the Cincinnati Bengals. He claimed he had been medically cleared to play, but the Bengals refused to play him, thus he could not earn parts of his contract. A few weeks ago, the courts ruled in his favor rewarding him all the money he would have received from his playing time. Utecht was able to show clear proof that the Bengals were negligent in the healing process. This means they didn't take the proper steps to help him heal, because of this he was unable to play and earn his money.

Utecht suffers from memory loss due to the concussions he's had. The Bengals may not have known how to work through the healing process, but at least they did not play him and risk further damage to Utecht.  Perhaps they feared the reprisals should he end up with concussion from a hit that caused debilitating life circumstance?

It was around this time the NFL was getting bad press about concussions and how teams did not care and threw their players into the fire. The league did not have a clear concussion recovery timeline, diagnoses system, or overall plan to deal with them.

Since then, the NFL has created a procedure for diagnoses, healing, and not allowing a player on the field until they can pass a concussion test.  The new system allows a teams to be cleared of any legal liability should a player suffer after clearing the test. (Assuming the team’s doctors did everything right.)

Despite all this, I still believe that in years to come, the NFL will have a waiver that needs to be signed by players when they first enter the league. It would waive the player’s rights to sue a team or the league later for any head related trauma unless they can prove negligence.  There are a lot of players who support the idea, stating that players know what they are doing when they join this league. These players include star running back Maurice Jones Drew, future hall of fame linebacker Brian Urlacher, and four time pro-bowl defensive end Justin Smith.

A look into Copyright issues in Sports

Anyone here seen the Heisman Trophy? Did you know there is a picture of legendary wide receiver Desmond Howard who played for the Michigan Wolverines doing the iconic pose? Did you know the man who took the picture is now suing the pants off a long list of companies for copyright infringement?

If you stopped me in the streets and asked me if this picture was copyrighted, I’d have to say yes. Well up until a few years ago I would have been wrong. The man, who shot it Brian Musack, finally copyrighted the picture, which is over 20 years old. Since then he has gone after Sports Illustrated for using the copyrighted material in their magazine without his permission, and Desmond Howard himself for selling signed copies of the picture without his permission.

Why did he not copyright the picture sooner? Bad legal counsel told him the fact that it was published in a major magazine with his name on the photo credit was enough to give him a copyright. Apparently that is not true.

In 2011, Musack was asked by Howard to sell him the rights to the picture, but as stated on PetaPix in an article, Musack asked for over 200 grand and Howard never bought the rights. Since then Howard has sold copies of the picture from his website.

Musack has a case if he were suing from the time of the copyright until now. Musack is asking apparently for backpay for issues of Sports Illustrated from years ago. Another company involved with this ad was Nissan and they are also being sued. He’s asking for money from Getty Images from years back.

This case with Musack reminds me of a case a professor back in undergrad told us about. A 3M employee created PostItNotes to use at his own desk while working for 3M. They were just for his personal use; he wasn’t bringing it to the company as a product. One of the big wigs saw the PostItNotes and loved the idea. 3M began to manufacture them. The creator sued 3M for stealing his idea and giving him no compensation for it. Interesting thing about this case was the man never filed for a patent. In the end the Supreme Court made a ruled in 3M’s favor. Not because the man didn’t file a patent, rather because the man created the PostItNotes on company time with company material. While the two cases are far from similar, for some reason they remind me of each other.

I don’t see how the court can award him anything for the time passed. I would understand the court awarding him money since the copyright but not before it. I feel bad for Musack because he got bad legal advice, but he’s suing for something he shouldn’t get. I would assume the statutes of limitations have run out.